Yang / City of Mercer Island
The City of Mercer Island's appeal process is scrutinized as it faces accusations of not following prescribed procedures, leading to disputes over access rights and omissions in surveys. The City's failure to adhere to its own processes has resulted in litigation and a lack of trust from property owners.
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Yang / City of Mercer Island Yang / City of Mercer Island Appeal Number APL21 Appeal Number APL21- -006 006 EX. 1018 1
Trust the Process Trust the Process Appeal Number APL21 Appeal Number APL21- -006 006 Cities are obligated to follow their prescribed process Cities are obligated to follow their prescribed process The process here should have been sufficient for the Yangs to trust the process The process here should have been sufficient for the Yangs to trust the process Development Manuel Required Proof of Access Development Manuel Required Proof of Access MICC requires consent of Affected Property MICC requires consent of Affected Property MICC 19.15.070 mandates that the City must only accept complete applications MICC 19.15.070 mandates that the City must only accept complete applications MICC 19.02.050(E)(1)(b)( MICC 19.02.050(E)(1)(b)(i i)(c) requires the City consider safety hazards )(c) requires the City consider safety hazards MICC 19.15.060 requires title reports MICC 19.15.060 requires title reports MICC 6.10.110 MICC 6.10.110 Easements and use limitations shown on plats are deemed Easements and use limitations shown on plats are deemed conditions conditions of permit approval of permit approval Yangs were told by the City they will not approve permits pending litigation Yangs were told by the City they will not approve permits pending litigation Yangs trusted this Yangs trusted this But the City failed to follow its Own Processes But the City failed to follow its Own Processes 2
The City Did Not Review Access Rights in Connection with Appealed Permit THE OWNER AND GUESTS OF THE RESIDENCE AT 6800 96TH S.E. HAVE THE RIGHT TO USE THE 10 ROAD EASEMENT FOR INGRESS AND EGRESS PURPOSES. Violated Development Manual and City Code: Applications must be complete / Easement rights must be verified EX. 1003 3
Misalignment made possible Misalignment made possible by the Niedermans by the Niedermans omission of the deeded omission of the deeded easement access from the easement access from the Niedermans survey when Niedermans survey when they submitted for permits to they submitted for permits to the City of Mercer Island the City of Mercer Island when their home was when their home was constructed constructed Survey Omits Deeded Survey Omits Deeded Access Access doesn t show any doesn t show any authorized access authorized access EX. 12 4
EXHIBIT 12: Did the City EXHIBIT 12: Did the City repeat the same mistake repeat the same mistake that caused the entire that caused the entire litigation and review this litigation and review this survey? survey? NO ACCESS NO ACCESS RIGHTS RIGHTS EX. 1019, p. 4 5
Litigation is Litigation is Pending to Pending to Determine if Determine if Deeded Access Will Deeded Access Will be restored be restored EX. 1009 6
Chris Niederman Lied I further certify that all easements, deed restrictions or other encumbrances restricting the use of the property are shown on the site plans submitted with this application. EX. 1006, p. 2 7
EXHIBIT 12: Did Chris EXHIBIT 12: Did Chris Niederman submit the Niederman submit the knowingly false survey or knowingly false survey or was no survey submitted at was no survey submitted at all? all? NO ACCESS NO ACCESS RIGHTS RIGHTS EX. 12 8
The City Did Not Follow Its Own Process that the Yangs Trusted The City Did Not Follow Its Own Process that the Yangs Trusted The Development Standards Guide is adopted under the authority of Chapter 19.27 RCW and WAC 51-54A-002 and thus is City administrative law EX. 1008, p 26 9
This Citys Trusted Process is This City s Trusted Process is Binding Law Binding Law The City adopted a Development Manual for Situations Such As This The City adopted a Development Manual for Situations Such As This Which States that the Development Manuel Itself Operates as Binding Which States that the Development Manuel Itself Operates as Binding Law in the City of Mercer Island: Law in the City of Mercer Island: 10
EX. 1008, p. 26 MICC 19.15.070 mandates that the City shall not accept an incompleteapplication for processing in review. The code provides in pertinent part: A. Complete Application Required. The city will not accept an incomplete application for processing and review. An application is complete only when all information required on the application form and all submittal items required by the development code have been provided to the satisfaction of the code official. EX. 1008 11
Ex. 1012: Separate publication sent to Niedermans reinforcing requirements Of development manual The City approved the application without having all the The City approved the application without having all the pertinent information to make its decision and without a pertinent information to make its decision and without a complete application for purposes of MICC 19.15.070. The complete application for purposes of MICC 19.15.070. The City of Mercer Island application instructions specifically City of Mercer Island application instructions specifically state that [p] state that [p]lans lans shall clearly show gate location, driveway shall clearly show gate location, driveway paved area all the way to the access road, access easement paved area all the way to the access road, access easement width if applicable, control pedestal, and any access width if applicable, control pedestal, and any access obstructions in the area. obstructions in the area. EX. 1012 12
Niedermans Gate Will Obstruct the Deeded Access Niedermans Gate Will Obstruct the Deeded Access EX. 20 13
The Niedermans did not Obtain Consent to the Permit as Required by The Niedermans did not Obtain Consent to the Permit as Required by The Mercer Island City Code The Mercer Island City Code Approval of this permit violates MICC 19.15.060(A)(8), which requires consent of all owners of the affected property. Affected means to produce an effect upon (someone or something). Affect, Merriam-Webster Dictionary (11th ed. 2003). As discussed below, the Yang Property is an affectedproperty, and thus, the Niedermans were required to obtain the Yangs consent. One way the Yangs are affected by this as referenced in City Code is that the widening of the Niedermans access will operate to reduce the Lot Area for development purposes as defined in MICC 19.16.010. 14
The Niedermans Admit That The Gate will Result in Safety Concerns State courts have held that permit applications may validly be denied based on safety concerns if substantial evidence shows that the proposed use is likely to . . . result in safety threats from construction. 2 Am. Law. Zoning 14:13 n. 1 (5th ed. 2021)(citing various state courts around the country). Additionally, City Code (which the City cites as applicable in its Staff Report) Additionally, City Code (which the City cites as applicable in its Staff Report) expressly provides that a gate may not create a traffic, pedestrian, or public safety hazard. MCC expressly provides that a gate may not create a traffic, pedestrian, or public safety hazard. MCC 19.02.050(E)(1)(b)(ii)(c). 19.02.050(E)(1)(b)(ii)(c). Chris Niederman has explicitly stated under oath that if constructed, the gate is going to create a significant safety hazard. In a September 2, 2021, Declaration, Mr. Niederman testified as follows: Recently the City of Mercer Island granted us a permit to put up a car gate across our driveway, Recently the City of Mercer Island granted us a permit to put up a car gate across our driveway, something we have long planned, and something we have long planned, and soon soon there will be no safe way there will be no safe way for cars and trucks to turn around at the bottom of the private lane at the bottom of the private lane. . for cars and trucks to turn around EX. 1013 15
The City Failed to Follow Its Own Process The Niedermans were required to obtain the Yangs consent to the gate as the Yang Property is an affected property under MICC 19.15.060(A)(8). The City approved the application without having all the pertinent information to make its decision and without a complete application for purposes of MICC 19.15.070. The City of Mercer Island application instructions specifically state that [p]lans shall clearly show gate location, driveway paved area all the way to the access road, access easement width if applicable, control pedestal, and any access obstructions in the area. Chris Niederman omitted relevant information from their application that was explicitly required per the instructions and falsely certified that they included all necessary information. The City s approval of this application was inappropriate, as it may ultimately have a role in determining the outcome of the litigation. 16
Trust the Process: Trust the Process: Appeal Number APL21 Appeal Number APL21- -006 006 The Yangs Trusted the City s Process. The same process that had prevented them form modifying the driveway location pending a dispute. Cities are obligated to follow their prescribed process. The process here should have been sufficient for the Yangs to trust the process Development Manuel Required Proof of Access MICC 19.15.060(A)(8) requires consent of Affected Property MICC 19.15.070 mandates that the City must only accept complete applications MICC 19.02.050(E)(1)(b)(i)(c) requires the City consider safety hazards MICC 19.15.060 requires title reports MICC 6.10.110 Easements and use limitations shown on plats are deemed conditions of permit approval Yangs were told by the City they will not approve permits pending litigation Yangs trusted this But the City failed to follow its Own Processes. The City Failed The Yangs. Accordingly, the Yangs ask that the Hearing Examiner reverse the City of Mercer Island s approval of Permit No. 2105-227. 17
